Environment Protection Authority v Edward Gilder [2018] NSWLEC 119

Environment Protection Authority v Edward Gilder [2018] NSWLEC 119

The defendant, as a person concerned in the management of a company that stored more than 2,500 cubic metres of waste without lawful authority, is guilty of an offence under s 144(1) of the POEO Act. Although there was actual and potential harm to the environment, the offence is in the lower range of objective seriousness due to lack of intentional conduct, mitigating subjective factors including contrition, lack of prior record, assistance, and guilty plea. A penalty of $50,000 was determined, reduced by 25% for the utilitarian value of the plea, resulting in a fine of $37,500, with costs to be paid to the prosecutor.

Jurisdiction
Australia
Judgment Date
21 August 2018
Procedural Posture
Criminal Prosecution (environmental Offence) / Sentencing Judgment After Plea of Guilty
Outcome
Defendant convicted and fined; order for costs
Legal Topics
['executive Liability' 'waste Facility Offences' 'sentencing' 'environmental Harm' 'asbestos Waste' 'licensing Requirements']
['environmental Law' 'criminal Law'] ['executive Liability' 'waste Facility Offences' 'sentencing' 'environmental Harm' 'asbestos Waste' 'licensing Requirements']

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Procedural Posture

Criminal Prosecution (environmental Offence) / Sentencing Judgment After Plea of Guilty

Legal Issues

  1. 1 ['What is the appropriate sentence for an executive liability offence under s 144(1) of the Protection of the Environment Operations Act 1997 (NSW)?' 'What is the objective seriousness of the offence?' 'What are the mitigating and aggravating factors relevant to sentencing?' 'To what extent did the defendant’s conduct cause environmental harm and undermine the regulatory scheme?' 'What practical measures could have been taken to avoid the offence or mitigate harm?']

Ratio Decidendi

The defendant, as a person concerned in the management of a company that stored more than 2,500 cubic metres of waste without lawful authority, is guilty of an offence under s 144(1) of the POEO Act. Although there was actual and potential harm to the environment, the offence is in the lower range of objective seriousness due to lack of intentional conduct, mitigating subjective factors including contrition, lack of prior record, assistance, and guilty plea. A penalty of $50,000 was determined, reduced by 25% for the utilitarian value of the plea, resulting in a fine of $37,500, with costs to be paid to the prosecutor.

Court Disposition

Defendant convicted and fined; order for costs

Orders

  • ['Mr Edward Gilder is convicted of an offence against s 144(1) of the Protection of the Environment Operations Act 1997 (NSW).' 'Mr Gilder is fined $37,500.' 'Mr Gilder is to pay the prosecutor’s costs of the proceedings in the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW).']